51 F. 277 -

51 F1d 277

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Case Text

IN

277

affording no legal ground for the detention of the petitioners by the mas. ter of the ship. The petitioners must therefore be discharged, but the order will not be carried into effect until sufficient time has elapsed to enable an appeal to be taken from this decree. In case an appeal be taken, any petitioner may be released on giving a recognizance with surety in the sum of $100 for appearance to answer the judgment of the appellate court.

In re MARSH.

(District Court, S. D. CaUfornia. July 5, 1899.)
1. On petition for a writ of habeas corpus to release a United States froI!l custody undel' state Pl'ocess the court cannot inquire i.nto the truth or justice of the charges a.gainst him, but is limited to the question whether his alleged unlawful acts were done in pursuance of a law of the United States. Suu:. A federal court cannot release by habeas corpus a Uni.ted States marshal held in custody under state process on the charge of kidnapping and carrying hjto Mexico a person named, though the marshal claimed to have been executing the law I1gainst the immigration of Chinese; for there is no law of the United States wllich would authorize such an act. .
FEDERAL CoURTS-JURISDICTION-HABEAS CORPUS-UNITED STATES MARSHALS.

Petition of A.W. Marsh, by George E. Gard in his behalf, for a writ . of habeas corpus. Denied. James L. Copeland and C. C. Stephens, for petitioner. Ross, District Judge. The petition for the writ sets forth that is illegally restrained of his liberty in this judicial district by the sheriff of San Diego county under and. by virtue of an order made on the 6th day of June, 1892, by W. A. SLOANE, as justice of the peace for San Diego township, in San Diego county, Cal. " holding the said Marsh, together with one Smallcomb, to answer before the superior court of that county for the crime of kidnapping, and admitting them to bail in. the sum of $1,000 each. The proceeding in which the order was made was instituted on the 11th day of April, 1892, by the filing, pursuant to the provisions of a statute of California, of an affidavit by one Edward Crosthwaite, in wbich it was averred that on the 29th of January, 1891, Smallcomb, Marsh, and one Cruz, at Tia Juana, in San Diego county, Cal., "did willfully and feloniously forcibly steill and take affi.ant and carry hiIDinto another country, to wit, the republic of Mexico, without having first established a claim so to do according to. the laws of the United States or of the state of California," contrary to. the provisions ofthesta.testatute. Upon the filing of the affidavit a rant was iSll}.led for the arrest of the parties against wQomthe charge was thus preferred, and,. the matter coming on for hearing. before., the. justice of the peace, testimony was taken, upon which. the order hold. ing them. was based. A copy of that testimony is llilnexed'

278:

FEDERAL

'!t-EPORTEl\, vol. 51.

to dia:de aJ part of the 'petitiort :for the writ, but for 'what'purpose it isdifficult'tc)"understand, since itsstiffioiencyas,abasis for the order is a question with whiehthis court has nothing to do. The petition avers that' at aRthe therein GeorgeE. Gam' was, and is, the dulY"appointed,qualified, and acting marshal for this judicial disof the said times,. Marsh was,and Still is, one of trict, his duly-appointed, qualified, and acting deputies; that in order to en· force the provisions of the act of congress known as the" Chinese Exclu· sion Act," and prevent Chinese from unlawfully entering the United States 'by crossing the line between this country and the republic of Mexico, Marsh was for some time stationed by the marshal on the American side of the line at Tia J ilana in San Diego county, through which village th,e,line between the two countries passes; that after in· vestigation Marsh reported to the marshal that a large number of Chinese wElre crossing the line and eqtering the United States contrary to Ip:wbytbe aid of the aforesaid Edwll-rll Crosthwaite, who, in order to conceal his acts and purposes in that behalf,pretended to be ,engaged in importing cattle and other stock from. Mexico into the United States; that the marlilhal, beoomil}g satisfied of the truth of these representations, direoted Marsh to enforce the laws of congress in' respect to the excluBi9t} of Chinese, as. well as to the payment of duties upon imported stock, and directed himto apply to the district attorney for further instructions. The instructions of the then district attorney, Mr. Cole, given upon said application, are annexed to and made a part of the petition in the form of an affidavit, and are as follows: "W. Col"l, Esq., being duly sworn, deposes and says that he is an attorney at that durillg the years of 1890 and 1891, he held the positionef United States attorney fotthe. southern distriet of California; that during the la"ter part of tht' year 1890, he was conau itetl officially by Deputy United >SLates ¥ar8hal.A.. W. Marsh inrpgard to one Crosthwaite bringing stolen cattle .illtothe Unitpd States from Baja, California, (Mr. Marsh being then the line between t,he Umted and Baja, Calirornia, for the purpose'ofenforci ng the Chinese excl usioo act.) At the instance of Mr'. Marsh,affiant made a careful 'exanlination of the federal statutes, and found that, owing to the fact, as affiant was informed by Mr. Marsh, that' Crusthwaitehad paid the duty on thestulen cattle, no criminal cumplaint CQuid be flIed .charglllg Crost hwaite ,with any offense under the fedt'ral statutes. , Affiant t.!lli\rel'oreso l1dvised Mr. Marsh, and infurmed him that, if prosecuted at aU. Crosthwaite would have to be prosecuted in the Slate courts."" , The petition for the writ avers that the proceeding instituted Marsh in the court of the justice Of the peace of San Diego township was solely for the purpose of obstructing the eniorcement of the laws of the/United States,and'of crippling the administration of justice in this judicial district; that the aforesaid justice of the peace, together with Ii\ J. Monahan, James Russell, Edward, Crosthwaite, Johnson Jones, and, J. E.Deakin, conspired to that end; and in the aforesaid tion of Marsh and SmallC(ltbb before the justice's court of San Diego township caused false testhnony. to\'be given, and facts to be withheld,

and subsequently caused an information to be filed by the district attorney of San Diego county in the superior court of that county against Marsh and Smallcomb charging them with the commission of the crime for which they had been held to answer by the justice of the peace; and on the 15th of June, 1892, caused an indictment to be found by the grand jury of the county against Marsh, Smallcomb,and certain other parties"charging them with having unlawfully cOnspired to attempt fraudulently to induce one Charles Oberlander to give false testimony in the aforesaid criminal. proceeding before the justice .of the peace; .and that to the information, as well as to the indictment, Marsh, although the jurisdiction of the state court, has been required to appear and plead. Annexed to and made a part of the petition are also a number of other affidavits, the purpose of which is to show that the aforesaid proceedings against Marsh were the result of an unlawful combination, and without any foundation in truth or justice. But .these are questioi)sthat this court cannot consider; nor can it be doubted that, if the facts be as claimed by the petitioner, the ,courts of the state will deal with the guilty parties as law and justice demand.. It is not for this court to say what, if any, laws of the state have been violated, or to determine whether the testimony taken before the committing magistrate justified the order holding Marsh to answer the charge of having violated a state statute. The one inquiry here to be made is whether or not the alleged acts of Marsh charged as a violation of the state laws were done "in pursuance of a law of the United States." Rev. St. §753. If so, such acts could not constitute a crime under any law of the state because authorized by a superior and controlling power. But iithe alleged acts of Marsh were not committed in pursuance of a law of the United States, the question. is between the petitioner and the state, and this court is without power or jurisdiction in the premises. The real question, therefore, is whether the acts against Marsh in the proceedings in the state court were committed in pursuance of a law of the United States; and that question admits of but one answer, and that in the negative. Neither the enforcement of the laws of congress for the exclusion of the Chinese from the United States, nor the laws against smuggling qattle and other stock into this country from foreign countries, in any respect authorized or justified the felonious or forcible taking of the pemon engaged in violating the laws of the United States from the United States into a foreign country. It is for such alleged felonious and forcible taking of Crosthwaite from the United States into Mexico, contrary to the provisions of a statute of the state of California, that Marsh ia, according to the averments of the petition, restrained of his liberty; which act, if committed, was not, and could not have been, done in pursuance of any law of the United States. The petition must therefore be. denied; and it is so ordered.

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I'EDERAL REPOBTER t

voL 51.

UNITED STATES ".

W ABWICL

(DiBtric& COUrt, D. Azaska. May 28,1892.)

L

Seqtlon U'Of l,he organlo Bot of Alaska, (Aot May 17,1884,) prohibiting the 1m portation, manufaoture, and sale of Intoxicating liquors, and oontlnuing in force ';the provisions of Rev. St. S 1955, in regard thereto, covers the whole SUbject, and hel1Qe repeals all prior laws. These provisions, therefore, together with the regulations made In pursuance thereof .by the president, constitute the ,. Alaska on the subject. NeZ8O'n v. U. S., 80 Fed. Rep. 112, 12 Sawy. Under these prOVisions an Indiotment charging that defendant. on a stated day, dla Unlawfully and willfUlly sell a quantity of Intoxicating liquor to two Indian wpm,en, states a punishable offense; and, as it Is Immaterial under the law whether the sale is to Indians or white persons, the allegation 8S to the Indian women maY' - 1;Ie' Nl.8iar4edall descriptive, or 8S mere surplusage. '

LtQOORS-ILLBGAL BALBs-ALAsKA.-REPBAL 0]1' 8T4TUTB&

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William Warwick for selling intoxicating
·,D, r:,

to quash.

Overruled.

for defendant.

,J,urjr ,tQr

Judge. On the 18th day of May, 1892, the grand retlll'ned an. indictment against the defendant. he dld,on or about the 24th day of November, 1891, linla and willfully, sell fl intoxicating liquor, commonly ,called to two,pertll-in Indian women therein Qamed. To this defendatltfiles a motion quash on the following grounds: 669 ofthl! OregonCOfle, under which this indictment is brought, the district of Alaska. and is in conflict with the lawlJof ibe United States. and that the offense is one not known to the laws in or applicable to the district of Alaska." The defe1'l.da.tit's counsel claims that section 669 of the Oregon .Code does not apply in this :case, for the reason that section 14 of the organio act, providing, for a civil government in Alaska, and section 1955 of the with the. regulations of the president in relation fully cover the subject of .the importation, manufacture, andBlU6 of liquor in this. district. Section 14 of the organic act reads 8S follows: ,. "That the provisions of, chapter three. title twenty-three, of the Revised Statutetil of the United states, relating to the unorganized territory of Alaska, shaUremaln in full force, except as herein specially otherwise prOVided; and the importation, manufacture, and sale of intOXicating liquors in said district. enflptformediclnal. mechanical, and scientific purposes, Is hereby prohiblt!o'd.under the penalties which afe prOVided In section nineteen bundred and fifty-five of.tpe Revised Statutes for wrongfuUmportatlon of distilled spirits; and the president of the United States shall make such regUlations aeare D'eCl'SSaTy to carry out the provisions of this section." The provisions of chapter 3, tit. 23, Rev. St., referred to, on the subject of the sale of liquors, only provide that "the president shall haYti power to restrict and regulate or to prohibit the imp"1'tSltion and use of